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Reed v. Larson

United States District Court, S.D. Illinois

June 27, 2018

RECO[1] REED, # B-18431, Plaintiff,
v.
DENNIS LARSON, Defendant.

          MEMORANDUM AND ORDER

          J. Phil Gilbert United States District Judge

         Plaintiff, currently incarcerated at Big Muddy River Correctional Center (“BMRCC”), has brought this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that Defendant has been deliberately indifferent to a serious medical condition. This case is now before the Court for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A.

         Under § 1915A, the Court is required to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the Complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief. 28 U.S.C. § 1915A(b).

         An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line between possibility and plausibility.” Id. at 557. Conversely, a complaint is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true, see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy or implausible that they fail to provide sufficient notice of a plaintiff's claim. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At the same time, however, the factual allegations of a pro se complaint are to be liberally construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         Applying these standards, the Court finds that Plaintiff's claims survive threshold review under § 1915A.

         The Complaint

         In his brief statement of claim, Plaintiff alleges that in August 2017, he advised prison official(s) that he had a hernia, and the hernia was measured. (Doc. 1, p. 5). He wrote to sick call stating the hernia was throbbing and had “slipped down.” Id. He was told to push the hernia back up.

         On December 16, 2017, Plaintiff sneezed and the hernia went down to his testicles. Id. Nurse English (who is not named as a Defendant) looked at it and called the doctor, who said Plaintiff should lie on his back and push the hernia back in. (Doc. 1, p. 5).

         In a December 25, 2017, grievance, Plaintiff stated that Nurse English told him the hernia would need surgery. (Doc. 1, p. 13). Plaintiff's December 31, 2017, grievance stated that he followed the directions to push the hernia back in while lying on his back, but it slipped right back down. (Doc. 1, p. 9). At that time (December 31, 2017), Plaintiff had still not been scheduled to see a doctor, and he was in serious pain. Id.

         On January 3, 3018, Plaintiff saw a doctor, who measured the hernia again. (Doc. 1, p. 5). Plaintiff was scheduled for another doctor visit in 90 days, but he was not given any medication to ease the pain. Id. He states that he had been complaining about the hernia pain since August 2017, but nothing had been done about it. (Doc. 1, pp. 5, 13).

         Plaintiff has been told by prison health official(s) that he will not be allowed to have surgery because of the cost, and he would have to get surgery after he is released. (Doc. 1, pp. 5, 14). Plaintiff is not due to get out of prison until 2026. Id.

         It appears that Plaintiff is seeking an order requiring prison officials to refer him to have hernia surgery, as well as damages. (Doc. 1, p. 6).

         Merits Review Pursuant to 28 U.S.C. § 1915A

         Based on the allegations of the Complaint, the Court finds it convenient to divide the prose action into the following counts. The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit. Any other claim that is ...


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